#Debriefed: Google, Visakha Industries, and Intermediary liability

An appeal filed by Google India Private Limited against Visakha Industries came up for hearing before the Supreme Court of India’s Dipak Misra and Amitava Roy JJ this past Thursday. The case raises interesting issues concerning the status of an intermediary: should Google, as an intermediary, be treated as a publisher or a newspaper delivery agent? And if Google is a publisher in the eyes of the law, then to what extent it is liable for the contents posted by the users? .Bar & Bench brings together the relevant questions and answers which the readers may have on this case so far. .1. What is this case about?. This is a case of criminal defamation filed by Visakha Industries against Google India Private Limited. Visakha, a company manufacturing Asbestos cement products, found an article posted on www.asbestosfreeindia.org to be defamatory in nature. Vishakha wrote to Google, since the site was hosted on Google’s blogger platform, to take down the article. .As Google India refused to take down the article, written by activist Gopal Krishna, Visakha filed a case of criminal defamation against it under sections 120B, 500 and 501 read with section 34 of the Indian Penal Code before Additional Chief Metropolitan Magistrate, Secunderabad..The ACMM took cognizance of the complaint and issued summons against Google India to appear on September 9, 2009. Google India first challenged this before the Andhra Pradesh High Court. With the High Court ruling against it on April 19, 2011, Google India appealed against the High Court judgment in the Supreme Court. .2. What did Visakha allege?.Visakha claims that Krishna’s article was aimed at the Visakha company. The article, linked it to political leaders like G.Venkata Swamy, a prominent Congress politician and the Congress president, Sonia Gandhi, who it claimed, had nothing to do with the ownership or management of the company.. Therefore, it alleged that the article was aimed to defame the company. .Another article, ‘Visaka Asbestos Industries making gains’ and published on July 31 in 2008 on the site was also alleged to be defamatory. The article, according to the complaint, stated that Visakha belongs to senior Congress leader, G.Venkataswamy’s family, whereas it is a public limited company and a separate legal entity having more than 12,000 shareholders. .The article, according to the complaint, also states that Visakha opened an asbestos cement plant in Rae Bareli, Uttar Pradesh (Lok Sabha constituency represented by the Congress President, Sonia Gandhi), signalling that asbestos industry enjoys patronage at the highest political level. Visakha has stated that it has seven manufacturing plants all over India, of which one is at Rae Bareli..3. What is Google India’s stand?.Google India maintains that the actions of intermediaries such as Google, which is a service provider offering a platform for end users to upload content, does not amount to “publication” in law and consequently the question of holding such intermediaries liable for defamation does not arise. .Google India relies on Section 79 of the Information Technology Act of 2000 in support of its contention. The said provision deals with exemption from liability of intermediary in certain cases. .Furthermore, Google India claims that it could not have initiated any action on taking down the allegedly defamatory content, as it has no control over the blog. Google India also claims it does not constitute itself to being the ‘intermediary’ as defined under the Information Technology Act, 2000, as amended upto date. It is Google Inc, the parent company, which provides services on the site in question, says Google India, thus absolving itself of any responsibility..Google Inc, to which Google India passed on Visakha’s complaint, sought specific information from Visakha, but instead Visakha proceeded to file the complaint. Google India maintains that it had no knowledge of the activities of Gopal Krishna, and therefore, it was not responsible for the alleged defamatory content..Ironically, the site was taken off public view by Google, and restored in September this year, after Ban Asbestos Network of India (BANI) convinced Google that it should remain in public domain in the interest of present and future generations. .The allegedly defamatory contents have been removed from the site by Gopala Krishna himself. Krishna, who is accused No.1 before the ACMM, was not a party before the High Court and is not named one before the Supreme Court..4. What did the High Court decide?.The High Court held that Section 79 exempts network service providers from liability under the Information Technology Act, rules or regulations made thereunder for any third party information or data made available by them. .But the High Court also held: .“It did not exempt a network service provider from liability much less criminal liability for the offences under other laws or more particularly under the Indian Penal Code.” .Further, the High Court concluded that Section 79 exempts network service providers from liability, only on proof that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention. The burden of providing proof is on the accused..In 2009, Section 79 was amended to keep the application of other laws outside its purview in a particular case. The High Court thus held that Google India was not entitled to exemption under Section 79 from liability, as it was also charged for criminal conspiracy and defamation under the Indian Penal Code. .The High Court also held that there is no exemption of any criminal liability in respect of a company which is a juristic person, and that in case found guilty, the company can be awarded with appropriate punishment, though not corporal punishment. .Therefore, it dismissed Google’s petition seeking quashing of the defamation proceedings against it in the lower court. .5. Who are the counsel in the Supreme Court?.Senior advocate K.V.Viswanathan represents Visakha, while senior advocate Aryama Sundaram represents Google India. Additional Solicitor General, Tushar Mehta represents the Centre, as the bench sought its assistance. .6. What were the arguments of the parties on Thursday?.Visakha: The moment Google refused to take down the defamatory content, its liability kicks in, as Google becomes the publisher with knowledge, and distributes the content like a vendor. There is no need for a court order, as the intermediary is automatically liable, once it has the requisite knowledge, as a result of the complaint, and request for ‘take-down’ of the allegedly defamatory content. Google India is an intermediary, as defined by Section 2(1)(w) of the Act. .Google India: An intermediary is not a publisher; the responsibility for removal of content can not be on a mere request. An intermediary would become a publisher only when he disobeys an order of injunction. The court has to decide whether there should be an order, and who will pass it – either the court or the Government. Knowledge of liability would kick in from the date of the order. Defamation is a matter of evidence and submission of proof. Section 69A of the Information Technology Act – dealing with power to issue directions for blocking for public access of any information through any computer resource – has left out defamatory statement as something for the Government to decide. .Centre: The Intermediary Guidelines 2011 make it clear that due diligence has to be maintained. Freedom of expression is absolute, subject to Article 19(2) only. Everything is to be read in the context of freedom of expression..Section 69A(2) of the Act is a summary procedure for blocking access by the public..Observations/Questions from the bench: How can Government determine what is defamatory? Who will make the request for blocking and who will issue the order?.The case will be listed again on January 19 next year.